§150 Application Principles, Generally
(U.S.S.G. Chapter 1)
Commission broadens criteria for Compassionate Release. (110)(150) Title 18, U.S.C. §3582(c)(1)(A), authorizes a federal court, upon motion of the Director of the Bureau of Prisons, to reduce the prison term of a defendant if “extraordinary and compelling reasons” warrant such a reduction or the defendant is at least 70 years of age and meets certain other criteria. The Commission broadened eligibility criteria for compassionate release in §1B1.13 and encouraged the Director of the Bureau of Prisons to file a motion for compassionate release when “extraordinary and compelling reasons” exist. See U.S. Department of Justice, Federal Bureau of Prisons, Compassionate Release/Reduction in Sentence: Procedures for Implementation of 18 U.S.C. §§3582(c)(1)(A) and 4205(g) (Program Statement 5050.49, CN-1). A sentence reduction may be based on the defendant’s medical circumstances (e.g., a terminal or debilitating medical condition; see 5050.49(3)(a)–(b)) or on certain non-medical circumstances (e.g., an elderly defendant, the death or incapacitation of the family member caregiver of an inmate’s minor child, or the incapacitation of the defendant’s spouse or registered partner when the inmate would be the only available caregiver; see 5050.49 (4),(5),(6)). Amendment 1, Effective Nov. 1, 2016.
6th Circuit holds that court's failure to calculate guideline range resulted in unreasonable sentence. (150)(855) Defendant argued that his sentence was unreasonable because the court failed to calculate his guideline range or make factual findings supporting his sentence. The government argued that defendant waived this challenge because he agreed at sentencing that 108 months would be “the starting point,” and did not object before the court imposed a sentence. The Sixth Circuit held that the sentence was procedurally unreasonable, and defendant did not waive his challenge. The district court's suggested “starting point” of 108 month was arbitrary. Rather than explain the sentencing decision to allow for meaningful review, the district court did little more than “split the difference” between defendant's suggested range of 30-37 months and the 188-235 months suggested in the PSR. This made meaningful appellate review impossible. Although defendant accepted the 108-month starting point, there was no waiver. Defendant made no “plain, explicit concession on the record” that the district court did not need to carry out its duty to calculate the appropriate guidelines range. U.S. v. Fowler, __ F.3d __ (6th Cir. Apr. 7, 2016) No. 14-2412.
4th Circuit remands to new judge where judge improperly viewed guidelines as mandatory. (150) Defendant engaged in a scheme to defraud his investment firm's client out of millions of dollars. At sentencing, the district court, in disagreement with both parties, stated numerous times that it viewed the guidelines as mandatory, and that its discretion was restricted to a sentence that fell within the guideline range. The court determined that defendant's guideline range was 135-168 months, and sentenced him to 140 months. The Fourth Circuit agreed with defendant that the district court erred when it treated the guidelines as mandatory. From the outset of the sentencing hearing, the district court lectured on its inability to have discretion, and continued to reference what it viewed a the mandatory nature of the guidelines. Although the district court at times alluded to the fact that it had discretion, at the same time it bemoaned that such discretion was highly disfavored. The error was not harmless, because if the court had considered the guidelines as discretionary, defendant's sentence might have been lower. The panel vacated and remanded for resentencing before a different judge. U.S. v. Martinovich, __ F.3d __ (4th Cir. Jan. 7, 2016) No. 13-4828.
1st Circuit reverses where district court failed to calculate correct guideline range. (150) Defendant pled guilty to unlawful possession of automatic weapons. The district court found defendant’s base offense level was 19, which was both wrong and contrary to any information that was before the court. It then cited a guideline range of 31-41 months, based on a total offense level of 19. However, the announced guideline sentencing range corresponded to nothing in the PSR nor, for that matter, to any offense level in the sentencing guidelines. No one in the courtroom corrected the court. The First Circuit held that the district court's failure to properly calculate the guideline sentencing range was plain error. The court's calculation failures were obvious and several. It neglected to calculate a total offense level, misstated the base offense level, and settled on a non-existent guideline sentencing range extending four months longer than the upper end of the range recommended by the PSR. These errors and their obviousness easily satisfied the first two requirements for a successful plain error challenge. Defendant showed a reasonable likelihood that the error affected his substantial rights. U.S. v. Marchena-Silvestre, __ F.3d __ (1st Cir. Oct. 6, 2015) No. 14-1404.
7th Circuit reverses supervised release term where court failed to determine guideline range. (150)(800) Defendant, who had been sentenced in 2013 to five years of probation for a drug offense, violated the terms of his probation just over six months later by, among other things, causing an accident and a resulting injury to another person by driving while drunk. The court sentenced defendant to a year and a day in prison, followed by ten years of supervised release. However, the judge failed to determine the guidelines range for the supervised release. The Seventh Circuit reversed and remanded. The judge was not bound by the guideline range of three years of supervised release. However, the judge was required, before deciding on the length of the defendant’s term of supervised release, to calculate the guidelines range and assess its appropriateness in light of the sentencing factors in 18 U.S.C. §3553(a). He failed to do these things. The error was not harmless simply because the judge could have imposed the same ten-year term of supervised release had he known that the top of the applicable guidelines range was only 3 years. U.S. v. Downs, __ F.3d __ (7th Cir. May 5, 2015) No. 14-3157.
1st Circuit holds that court erred selecting guideline based on conduct not alleged in indictment. (150) Defendant was convicted of bank burglary under 18 U.S.C. § 2113(a). Subsection 2113(a) can be violated in two distinct ways: (1) bank robbery, and (2) bank burglary. The Statutory Appendix lists both the burglary guideline (§ 2B2.1) and the robbery guideline (§ 2B3.1) as potentially applicable. The district court applied the robbery guideline based on the head teller's trial testimony, which described conduct that amounted to bank robbery, i.e., taking from a bank by force, violence, or intimidation. The indictment, however, did not allege the use of force, but used language that closely tracked § 2113(a)'s bank burglary prong. The First Circuit remanded, holding that under Note 1 to U.S.S.G. § 1B1.2 and the introduction to the Statutory Appendix, where the guidelines specify more than one guideline for a particular statutory offense, the district court must select the most appropriate guideline based only on conduct charged in the indictment. The district court erred by selecting the guideline applicable to defendant's crime on the basis of conduct not alleged in the indictment. U.S. v. Almeida, 710 F.3d 437 (1st Cir. 2014).
1st Circuit remands for district court to consider whether to reduce defendant’s sentence in light of amended guideline. (150) Defendant received a five-level enhancement under guideline section 2S1.3(b)(1). After he was sentenced, that section was amended (effective November 1991) to provide for only a four level enhancement. The 1st Circuit remanded the case for the district court to consider whether defendant should receive a one level reduction in offense level. Guideline section 1B1.10(a) provides that where a defendant is serving a term of imprisonment and his guideline range is subsequently lowered as a result of certain referenced amendments, then a reduction of sentence may be considered. The amendment to section 2S1.3(b)(1) was one of the amendments to which section 1B1.10(a) applied. The court found it preferable that the matter of sentence reduction be considered first by the sentencing court, not the appellate court. U.S. v. Connell, 960 F.2d 191 (1st Cir. 1992).
1st Circuit upholds 360-month sentence imposed upon 54-year-old man. (150) Defendant asserted that the imposition of a 360-month sentence on a 54-year old man amounted to a life sentence, and that the district court failed to consider whether a life sentence was appropriate for his crimes. The 1st Circuit rejected this argument. A defendant’s age is not relevant in determining a sentence, except when the offender is elderly and infirm. Since defendant was neither, the district court correctly applied the sentencing guidelines. U.S. v. Doe, 921 F.2d 340 (1st Cir. 1990).
2nd Circuit holds that murder was relevant conduct for racketeering defendant. (150) Defendant, a member of a New York crime family, was convicted of racketeering and related charges. At sentencing, the district court found by a preponderance of the evidence that defendant was also involved in the murder of Sciascia, and that the murder was relevant conduct, even though the jury did not convict defendant of the murder. Defendant argued that the murder was not relevant conduct because it was not related to a conspiratorial object of which he was convicted. According to defendant, he was only convicted of racketeering acts involved in generating money for the family, and not racketeering acts that related to personal grievances of the family. He relied on § 1B1.2(d), which instructs the sentencing court, when faced with a conviction for a multi-object conspiracy, to treat it as several convictions for single-object conspiracies. The Second Circuit held that the district court properly considered the murder to be relevant conduct. Section 1B1.2 was not applicable because a RICO conspiracy is not a multi-object conspiracy. It is a single-object conspiracy, with the object being to engage in racketeering. Predicate racketeering acts are not conspiratorial objects. U.S. v. Massino, 546 F.3d 123 (2d Cir. 2008).
2nd Circuit does not determine which mandatory minimum applies where guidelines range higher. (150) Defendant argued that because he was convicted of conspiracy to possess and distribute both cocaine and crack, and the jury returned a general guilty verdict, he should have received a ten-year minimum sentence (applicable under § 841(b)(1)(B) to an offense involving cocaine when the defendant has prior drug convictions), rather than a 20-year minimum sentence (applicable under § 841(b)(1) (A) to an offense involving crack when the defendant has prior drug convictions). The Second Circuit found the cases cited by defendant inapplicable, since the guideline range here was 292-365 months, higher than both the statutory 10-year minimum term for powder cocaine and the 20-year minimum term for crack. Thus, regardless of which statutory minimum prison term applied, defendant’s sentencing range would not be altered. Thus, there was no need for remand. U.S. v. Stephenson, 183 F.3d 110 (2d Cir. 1999).
2nd Circuit says district court must determine drug quantity before determining statutory maximum. (150) Defendants argued that because they were convicted of drug conspiracy charges by a general verdict, the court should assume that the conspiracy involved the controlled substance with the more lenient statutory maximum penalty. The district court case used the maximum penalty for crack, which in this case was life imprisonment because over 1.5 kilograms of crack were involved in the conspiracy. See 21 U.S.C. § 841(b)(1)(A). Defendants claimed that the applicable maximum sentence was only 40 years’ based on a conspiracy to distribute between 500 grams and five kilograms of powder cocaine. The government argued that statutory maximum was life for both substances because the trial record showed that defendants conspired to distribute at least five kilograms of powder cocaine. See § 841(b)(1)(A)(ii). The Second Circuit refused to resolve this dispute over the amount of powder cocaine involved in the offense because the district court should make this determination in the first instance. The case was remanded for a hearing to determine the amount of powder cocaine distributed by defendants. U.S. v. Moreno, 181 F.3d 206 (2d Cir. 1999), abrogation on other grounds recognized by, U.S. v. Gonzalez, 420 F.3d 111 (2nd Cir. 2005).
2nd Circuit holds defendant waived right to appeal sentence within specified range. (150) Defendant and the government agreed as part of his plea agreement not to appeal a sentence that fell within a range of 120-135 months. The district court imposed a 135-month sentence. Defendant filed an appeal on the ground that the court failed to comply with the requirement in 18 U.S.C. § 3553(c)(1) to give specific reasons for imposing a sentence within a range of more than 24 months. The Second Circuit held that defendant waived his right to appeal his sentence, since it fell within the range specified in the plea agreement. The waiver of appellate rights does not foreclose an appeal in every circumstance. A defendant who waives his right to appeal does not subject himself to being sentenced entirely at the whim of the district court. An arbitrary sentence without reasons would be an abdication of judicial responsibility subject to mandamus. Similarly, a sentence tainted by racial bias could not be supported by contract principles. But this was not such a case. Judge Newman dissented, believing defendant did not waive the claim that the sentencing judge violated a statutory requirement. U.S. v. Yemitan, 70 F.3d 746 (2d Cir. 1995).
2nd Circuit refuses to reconsider 100:1 crack to powder cocaine ratio in light of proposed amendment. (150) Defendant challenged the constitutionality of the 100:1 crack to powder cocaine ratio. He also urged the court to remand for reconsideration in light of a proposed guideline amendment abandoning the 100:1 ratio. The Second Circuit affirmed the constitutionality of the ratio based on its recent decision in U.S. v. Then, 56 F.3d 464 (2d Cir. 1995). It added that appellate courts should not review sentences in light of proposed changes to the guidelines. [Ed. Note: the proposed amendment was rejected by Congress.] U.S. v. Jimenez, 68 F.3d 49 (2d Cir. 1995).
2nd Circuit remands after amendment states that felon in possession is not a crime of violence. (150) Defendant was convicted of two counts of being a felon in possession of a firearm. He was sentenced as an Armed Career Criminal under the 1991 version of guideline 4B1.4. The district court rejected defendant’s ex post facto challenge to his 264-month sentence, finding that under the version of the guidelines in effect when the offense was committed, he would have been classified as a career offender, and thus would have been subject to an even harsher sentence. The career offender finding was based on the conclusion that defendant’s felon in possession conviction was a crime of violence. However, on the day of oral argument, guideline section 1B1.10(d) was amended to provide retroactively that a “felon in possession” conviction is never a crime of violence for career offender purposes. In light of this amendment, the 2nd Circuit remanded the case for resentencing. U.S. v. Carter, 978 F.2d 817 (2nd Cir. 1992).
3rd Circuit refuses to apply Amendment 591 retroactively despite Commission’s characterization of it as “clarifying.” (150) In U.S. v. Smith, 186 F.3d 290 (3d Cir. 1999), superseded by rule as stated in U.S. v. Omoruyi, 260 F.3d 291 (3d Cir. 2001), the Third Circuit refused to apply the money laundering guideline to a defendant convicted of fraud and money laundering, concluding that the guidelines required a sentencing court to make a heartland analysis in making the initial choice of the appropriate guideline. Under this analysis, if the conduct is “atypical” of the conduct usually punished by the statute of conviction, the court should determine what other guideline would be more appropriate. Amendment 591, effective November 1, 2000, abrogated the Smith analysis. Under Amendment 591, the sentencing court must apply the offense guideline referenced in the Statutory Index for the statute of conviction. Because Amendment 591 effected a substantive change to the sentencing guidelines as interpreted by Smith, the Third Circuit ruled that it could not be applied retroactively to defendant. The Sentencing Commission’s characterization of the amendment as a “clarification,” was not binding, nor even entitled to substantial weight. A “clarifying” amendment cannot be used to interpret an earlier guideline when the result would be to punish the defendant more harshly, as might be the case here. U.S. v. Diaz, 245 F.3d 294 (3d Cir. 2001).
3rd Circuit holds career offenders are not eligible for minor role reductions. (150) Defendant was convicted of drug conspiracy charges. In the plea agreement, the parties stipulated that defendant’s minor role in the conspiracy warranted a minor role reduction under § 3B1.2. However, the PSR concluded that defendant was a career offender. The district court agreed that defendant’s minor role would ordinarily warrant a downward adjustment, but held that the minor role adjustment did not apply to career offenders. The Third Circuit agreed, ruling that career offenders are not eligible for minor role reductions. The sequence of the Sentencing Guideline Application Instructions in § 1B1.1 indicates that after career offender status is imposed, downward adjustments are allowed only for acceptance of responsibility. If the sequence in § 1B1.1 was arbitrary, the additional provision for an acceptance of responsibility reduction would have been unnecessary. U.S. v. Johnson, 155 F.3d 682 (3d Cir. 1998).
3rd Circuit affirms application of “one book rule.” (150) Defendant was sentenced in 1994 for several firearms offenses. Because § 2K2.1 was amended after he committed the charged offenses, the 1993 guidelines in effect at sentencing would have resulted in a harsher sentence than the version in effect when defendant committed the offenses. The parties agreed that the 1990 version of § 2K2.1 was applicable. The district court granted defendant the two-level acceptance of responsibility reduction available under the 1990 guidelines. Defendant argued that the district court should have granted him the three level reduction available under the 1993 guidelines. The Third Circuit, following its recent decision in U.S. v. Cook, 53 F.3d 1029 (9th Cir. 1995), affirmed the district court’s application of the “one book rule.” U.S. v. Griswold, 57 F.3d 291 (3d Cir. 1995).
3rd Circuit upholds codification of “one book rule.” (150) Defendant was involved in a stolen car conspiracy from 1985 through May 1988. To avoid ex post facto problems, the court sentenced him under the 1987 guidelines in effect when he committed his offense, including a two level reduction for acceptance of responsibility. Defendant argued that he should have received the three level reduction available under the 1993 guidelines. He argued that the “one book rule,” the practice of applying only one version of the guidelines that is now codified at § 1B1.11(b)(2), is not binding because it is a policy statement rather than a guideline. The Third Circuit held that the “one book rule” is binding. To the extent that prior Third Circuit opinions disapprove of the one book rule, they have been overruled by § 1B1.11(b)(2). Applying the one book rule did not violate the ex post facto clause because defendant’s sentence was imposed under the law in effect at the time he committed his crimes, and therefore he had fair warning of the specific punishment he faced. U.S. v. Cook, 53 F.3d 1029 (9th Cir. 1995).
3rd Circuit remands to consider amendment to structuring guideline. (150) The guideline for structuring currency transactions, § 2S1.3, was amended effective November 1, 1993, to reduce the base offense level. The 3rd Circuit remanded to consider whether, under the amended guideline, a reduction was warranted pursuant to 18 U.S.C. § 3582(c)(2) and guideline § 1B1.10(d). Under section 3582 and circuit case law, defendant’s sentence was final. Thus, he would be entitled to a modification only if the amendment was listed in the “retroactivity” section of the guidelines, § 1B1.10(d), and the district court exercised its discretion to apply the more lenient guideline. Here, the amendment to section 2S1.3 was listed in section 1B1.10(d), and therefore the court had discretion to apply it retroactively. The case the remanded for the district court to consider whether a reduction in sentence was appropriate. U.S. v. Marcello, 13 F.3d 752 (3rd Cir. 1994).
3rd Circuit upholds downward departure for improper manipulation of indictment. (150) Defendant embezzled bank funds and was convicted of embezzlement and tax evasion. The district court found that grouping of the two counts was not permitted under the guidelines, but that it was highly unusual for a defendant to be charged with both embezzlement and tax evasion for the moneys he embezzled. The court departed downward by two levels to correct this “inappropriate manipulation of the indictment.” The 3rd Circuit upheld the departure, holding that a court may depart downward for manipulation of the indictment. Policy Statement 4(a) in Chapter 1, Part A in the Introduction to the Guidelines states that the Sentencing Commission recognized that a charge offense system has drawbacks and that a sentencing court may control any inappropriate manipulation of the indictment through use of its departure power. The district court properly fixed the amount of departure by reference to the two level increase caused by the failure to “group” the offenses. U.S. v. Lieberman, 971 F.2d 989 (3rd Cir. 1992).
4th Circuit says § 3553(a)(6) is not concerned with sentencing disparities between state and federal defendants. (150) Defendant pled guilty in federal court to conspiring to distribute crack cocaine, which crime she committed in the State of Virginia. Although the guideline provided for a sentencing range of 46-57 months, the court sentenced defendant to eight months, giving “great weight” to the fact that defendant would have received a much lower sentence for a comparable state crime in Virginia. Under 18 U.S.C. § 3553(a)(6), district courts must consider “the need to avoid unwarranted sentence disparities among defendants with similar records who have been convicted of similar conduct.” The Fourth Circuit ruled that the district court either failed to consider this provision or considered it improperly. It seemed likely that the court did not consider § 3553(a)(6) at all, and simply resorted to state law for additional insight as to what would constitute a reasonable sentence, wholly without regard for whether the sentence would result in sentencing disparities. It was also possible the court incorrectly believed that the disparities to be avoided were those between state and federal defendants. However, the sole concern of § 3553(a)(6) is with sentencing disparities among federal defendants. U.S. v. Clark, 434 F.3d 684 (4th Cir. 2006).
4th Circuit declines to notice error in basing sentence on most severe object of conspiracy. (150) Defendants argued that the court erred by imposing sentences based on the most heavily punishable objects of the conspiracy (cocaine and cocaine base), even though it was impossible to tell from the jury’s general verdict which of the charged objects of the conspiracy served as the basis for the conviction. See U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on other grounds on reh’g en banc, 218 U.S. 310 (4th Cir. 2000). Since defendants did not object to the submission of a general verdict or request a special verdict, the 4th Circuit reviewed the sentences only for plain error. The evidence against the defendants with respect to cocaine and cocaine base was overwhelming and essentially uncontroverted. Virtually every government witness who testified about drugs testified about the defendants’ extensive involved with cocaine or cocaine base. Thus, it was not “impossible to determine on which statutory object or objects … the conspiracy conviction was based.” Accordingly, the Fourth Circuit declined to notice the error. U.S. v. Mackins, 315 F.3d 399 (4th Cir. 2003).
4th Circuit remands where sentences exceeded maximum for least-punished object of conspiracy. (150) The jury returned a general verdict convicting defendants of a conspiracy involving “heroin, or cocaine, or cocaine base or marijuana.” Defendant argued that because the jury’s verdict was ambiguous as to which drug was involved, his sentence could not exceed the statutory maximum for the drug (marijuana) carrying the lowest statutory penalty. The Fourth Circuit agreed that under Edwards v. United States, 523 U.S. 511 (1998), the district court could not impose a sentence in excess of the statutory maximum for the least-punished object on which the conspiracy conviction could have been based. Under § 841, the applicable statutory maximum is based on the quantity that can be attributed to the defendant. The court made a drug quantity finding, but did not determine whether its sentences exceeded the statutory maximum for the least-punished conspiracy. Three defendants received sentences that exceeded the applicable maximums, and thus violated Edwards. On remand, the government may choose between resentencing these defendants for a marijuana-only conspiracy, or retrying them on the conspiracy count. U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part on other grounds, U.S. v. Rhynes, 218 F.3d 310 (4th Cir. 2000) (en banc).
4th Circuit reverses district court’s application of fraud offense characteristics to counterfeiting offense. (150) Defendant was sentenced under guideline section 2B5.1 for counterfeiting. Section 2B5.1(b)(1) provides that if the face value of the counterfeit items exceeded $2,000, then the base offense level should be increased using the table at section 2F1.1. In addition to increasing defendant’s offense level using the table at section 2F1.1(b), the district court also applied section 2F1.1(b)(2), which provides a two-level increase for more than minimal planning. The 4th Circuit reversed. The language of section 2B5.1(b)(1) plainly refers only to the table at section 2F1.1(b)(1), not all of the specific offense characteristics incorporated in section 2F1.1. Section 1B1.5, which provides that unless otherwise indicated, an instruction to apply another guideline refers to the entire guideline, was not applicable. Here the language used expressly indicates the table, not the entire guideline. U.S. v. Payne, 952 F.2d 827 (4th Cir. 1991).
4th Circuit holds that defendant suffering mental illness can be sentenced to treatment facility for period that exceeds guidelines range. (150) The district court, in lieu of sentencing defendant, directed that he be hospitalized, and that his commitment constitute “a provisional sentence of imprisonment to the maximum term authorized by law for the offense for which the defendant was found guilty.” Defendant received a provisional sentence of five years, and argued that “maximum term authorized by law” meant the maximum period authorized by the sentencing guidelines, i.e., six to 12 months. Defendant contended that he was denied equal protection, since prisoners who need mental health care during their sentence are sent to a mental health facility until the earlier of their recovery or the expiration of their term of imprisonment. The 4th Circuit rejected this argument, finding that “maximum term authorized by law” meant the statutory maximum. Defendant’s provisional sentence did not violate equal protection since a prisoner found to be mentally ill during the term of his sentence is not similarly situated. U.S. v. Roberts, 915 F.2d 889 (4th Cir. 1990).
5th Circuit says 99-month downward variance did not make sentencing guideline errors harmless. (150) Defendant was convicted of fraud and conspiracy. The district court erroneously applied several enhancements to defendant's offense level, resulting in an offense level of 38 and a guideline range of 235-293 months. In reality, his offense level should have been 32 with a guideline range of 121-151. The court found the 235-293 months range was unreasonable, and sentenced defendant to 136 months. The Fifth Circuit nonetheless reversed, holding that the district court's granting of a 99-month downward variance did not render the court's errors harmless. The record did not reflect whether the district court would have imposed a 136-month sentence had it departed from the correct 121-151 month range, instead of the incorrect 235-293 month range. U.S. v. Roussel, 705 F.3d 184 (5th Cir. 2013).
5th Circuit finds second pronouncement of sentence was not improper sentence modification. (150) After allocution and at sentencing, defendant faced a prison term for two counts – a new substantive charge and sentencing on a revocation of supervised release. The district court announced a combined term of 43 months for both charges. Thereafter, within the same hearing and upon application by defense counsel, the district court reformulated the sentence, but reached the same result: 43 months. Defendant contended that the amended sentence, as it related to the revocation charge, was an improper modification of a sentence under § 3582(c) and was barred by Rule 35(a). The Fifth Circuit disagreed. Not only was the application for the modification made by a party, but it was also made within the same hearing, on the same day, within moments of the original pronouncement. The unbroken sequence of actions supported construing the totality of the events as one sentence. The case was distinguishable from U.S. v. Cross, 211 F.3d 593 (5th Cir. 2010), which involved a modification of sentence after the sentencing judge gaveled the hearing adjourned. U.S. v. Meza, 620 F.3d 505 (5th Cir. 2010).
5th Circuit holds that refusal to apply different guideline was non-reviewable refusal to depart. (150) Defendant argued that the fraud was the essence of her offense, and therefore the district court erred in sentencing her under the money laundering guideline, rather than the fraud guideline. The Fifth Circuit found no error in the district court’s decision to apply § 2S1.2 to defendant’s violation of 18 U.S.C. § 1957. Appendix A of the guidelines indicates that § 2S1.2 corresponds with violations of 18 U.S.C. § 1957. “[W]here a court finds that the facts in a section 1957 case are sufficiently atypical as to warrant the application of a lower guideline range, its decision constitutes a downward departure. The court in such an instance does not misinterpret the Guidelines by failing to apply section 2S1.2, it exercises its discretion under the facts of that case.” The district court’s refusal to apply a different guideline constituted a refusal to grant a downward departure, a decision which was not reviewable. U.S. v. Loe, 248 F.3d 449 (5th Cir. 2001).
5th Circuit says non-ambiguous general verdict did not bar sentence in excess of lower statutory maximum. (150) Defendant was convicted of conspiracy to distribute cocaine and phenmetrazine tablets (preludes). The sentencing court found that the jury’s general guilty verdict was “ambiguous” because the jury did not specify whether defendant conspired to distribute preludes, or cocaine, or both. Therefore, it ruled that defendant’s sentence could not exceed the five-year statutory maximum for a conspiracy involving only preludes. The Fifth Circuit ruled that the general verdict was not ambiguous and therefore the court could impose a sentence in excess of the five-year maximum for a preludes-only conspiracy. Even where there is a general verdict in a conspiracy case, the sentencing court can still conclude that the jury found guilt beyond a reasonable doubt for more than one object-offense. In the present case, after considering the conjunctive language used in the indictment to describe the objects of the conspiracy; the jury instructions, which also used conjunctive language and referred to the indictment; and the overwhelming evidence that the conspiracy involved both cocaine and preludes, the Fifth Circuit concluded that the jury found guilt beyond a reasonable doubt for each of the object offenses. U.S. v. Green, 180 F.3d 216 (5th Cir. 1999).
5th Circuit rejects claim that general conspiracy verdict resulted in sentencing for unconvicted offense. (150) Defendants claimed that they were sentenced for an offense for which they were not convicted, (i.e., conspiracy to distribute cocaine and cocaine base), because the court used a general verdict form for the conspiracy count. The 5th Circuit rejected this claim. The argument ignored the fact that the sentence is limited to the statutory maximum for the least severe object offense alleged in the conspiracy count. Although the district court did not expressly make a finding under § 1B1.2(d) beyond a reasonable doubt that defendant had conspired to traffic in cocaine base and cocaine, such a finding can be implicit, and there was ample evidence in the record to support such a finding. U.S. v. Fisher, 22 F.3d 574 (5th Cir. 1994).
5th Circuit adjusts for acceptance of responsibility only after combined offense level is determined. (150) Defendant was convicted of two marijuana counts, which were grouped together, and an assault count, which was grouped separately. Defendant accepted responsibility for the two marijuana convictions, but refused to accept responsibility for the assault. Thus, the district court refused to reduce defendant’s combined offense level for acceptance of responsibility. Defendant contended that he should have received the reduction in the offense level for the marijuana counts before computing the combined offense level for both groups. The 5th Circuit rejected the argument. The Application Instructions in Chapter One, Part B, sections 1B1.1(a)-(i), listing the steps to be followed in applying the guidelines, provide that an adjustment for acceptance of responsibility, if appropriate, is to be applied after the offense level for groups of multiple counts and the resulting combined offense levels have been computed. U.S. v. Kleinebreil, 966 F.2d 945 (5th Cir. 1992).
5th Circuit permits consideration of defendant’s potential for rehabilitation in sentencing within the range. (150) The district court erroneously concluded that defendant’s rehabilitative potential was irrelevant in determining his sentence within the applicable guideline range. The 5th Circuit vacated the sentence and remanded. Although a defendant’s personal characteristics may not be considered as support for a downward departure, a court has broad discretion in imposing a particular sentence within the guideline range. Although the sentencing guidelines reject the rehabilitation model, they do not preclude consideration of a defendant’s rehabilitative potential as a mitigating factor within the applicable range. U.S. v. Lara-Velasquez, 919 F.2d 946 (5th Cir. 1990).
5th Circuit rules that failure to apply guideline most applicable to the offense of conviction required reversal. (150) Guideline § 1B1.2(a) requires the court to apply the guideline most applicable to the offense of conviction. Here, the defendant was convicted of soliciting a bribe as a bank officer, in violation of 18 U.S.C. § 215. The applicable guideline is § 2B4.1. The district court, however, applied the guideline for bribery of a public official (§ 2C1.1). In addition to being a bank officer, the defendant was an assistant district attorney and had solicited the bribe in both capacities. The 5th Circuit vacated the sentence and remanded for resentencing under § 2B4.1, but stated that on remand the court may wish to consider a departure if it concludes that defendant’s conduct as a public official was not adequately taken into consideration by the bank bribery guideline. U.S. v. Brunson, 882 F.2d 151 (5th Cir. 1989).
5th Circuit holds that fact that guidelines were higher than statutory maximum did not make guidelines inapplicable. (150) The maximum sentence under the guidelines range for defendant’s conviction of conspiracy to distribute LSD was eight years, but the trial court sentenced him to the statutory maximum of five years. The 5th Circuit held that this discrepancy was not grounds for setting aside the guidelines in the defendant’s case, because the sentence was nevertheless proper. The guidelines cannot be expected always to concur with the statute of conviction. In any event, Congress provided that the statutory maximum would govern over the guidelines. The sentencing court’s ruling on this issue was entirely correct. U.S. v. Taylor, 868 F.2d 125 (5th Cir. 1989).
6th Circuit rules court made implicit finding that defendant conspired to commit additional robberies. (150) Defendant and his brother committed a series of bank robberies. The jury convicted defendant of conspiracy to commit bank robbery and a single count of bank robbery, and his brother was convicted of conspiracy and five robbery charges. Defendant challenged the application of a four-level increase under §3D1.4 on the grounds that the court failed to find beyond a reasonable doubt that defendant conspired to commit additional robberies, as required by §1B1.2(d). The Sixth Circuit ruled that the district court made an implicit finding that the defendant conspired to commit the bank robberies for which his brother was convicted, and this supported the §3D1.4 upward adjustment. At both defendants' sentencing hearings, the district court rejected a five-level increase under §3D1.4, which would have required a finding that the defendants conspired to commit robberies beyond the five that the brother was convicted of. It was clear from the facts presented at trial and found by the jury that defendant and his brother conspired to rob banks together, and that the robberies all rose out of that same conspiracy. U.S. v. Bates, 552 F.3d 472 (6th Cir. 2009).
6th Circuit rules cross-reference required applying guideline and specific offense characteristics. (150) Defendant pled guilty to money laundering. Section 2S1.1(a)(1) bases the offense level on the guideline for the underlying offense. In this case, defendant was laundering funds for a drug dealer. Defendant argued that because the district court cross-referenced § 2D1.1, the court was also required to apply the specific offense characteristics of § 2D1.1(b). The Sixth Circuit agreed. Section 1B1.5(b)(1) states that “[a]n instruction to use the offense level from another offense guideline refers to the offense level from the entire offense guideline (i.e., the base offense level, specific offense characteristics, [etc.]).” Thus, § 2S1.1(a)(1)'s direction to apply “the offense level for the underlying offense from which the laundered funds were derived,” meant applying § 2D1.1 in its entirety, rather than only § 2D1.1's base offense level. Defendant was arguably eligible for a two-level safety valve reduction under § 2D1.1(b)(7). U.S. v. Anderson, 526 F.3d 319 (6th Cir. 2008).
6th Circuit says court must find defendant conspired to commit at least one listed object of conspiracy. (150) Defendant was convicted of conspiracy to commit extortion, in violation of the Hobbs Act. The indictment charged defendant with conspiring to commit nine specific acts of extortion. Guideline § 1B1.2(d) directs that a multi-object conspiracy shall be treated as if the defendant had been convicted on a separate count of conspiracy for each object offense. However, where the verdict does not establish which offense was the object of the conspiracy, § 1B1.2(d) “should be applied with respect to an object offense … if the court, were it sitting as a trier of fact, would convict the defendant of conspiracy to commit that object offense.” Note 5 to § 1B1.2. Because the jury returned a general verdict, the district court followed Note 5, and found for each act of extortion that it “would not convict the defendant of conspiring to commit that offense.” However, in order to sentence defendant for the extortion conspiracy, the court had to find that he conspired to commit at least one of the acts of extortion. The Sixth Circuit remanded with instructions for the district court to reassess whether defendant conspired to commit the various acts of extortion charged in the indictment. U.S. v. Tocco, 306 F.3d 279 (6th Cir. 2002).
6th Circuit holds that general verdict required sentence for marijuana-only conspiracy. (150) Defendant asked the district court to submit a special verdict form to the jury to determine whether he was guilty of a conspiracy involving cocaine, or only marijuana. Defendant would have benefited from a 60-month sentencing cap if found guilty of a marijuana-only conspiracy. The court denied defendant’s motion and he received a 188-month sentence. In U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999), the court held where a defendant has been convicted under a general conspiracy verdict, it is plain error to impose a sentence that surpasses the object of the conspiracy carrying the least grave sentencing consequences. This case was distinguishable from Dale in that counsel here explicitly requested a special verdict. Thus the trial judge and the government were on notice that defendant wished to have the opportunity to convince a jury that his participation in the conspiracy related only to marijuana. Thus, in remanding, the Sixth Circuit refused to give the government the option, as in Dale, to “permit” the defendant to be sentenced for the lesser penalty or force him to submit to a new trial. Defendant’s prosecutors had already once declined to seek a special verdict after being placed on notice that defendant intended to argue that he was only responsible for the less grave object of the conspiracy. It would be unjust to reward their efforts by providing them with a Dale-type election. Instead, the panel remanded with directions to sentence defendant for a marijuana-only conspiracy. U.S. v. Randolph, 230 F.3d 243 (6th Cir. 2000).
6th Circuit rules defendant must accept responsibility for all counts of conviction. (150) When FBI agents raided a drug house, defendant attempted to place his hand in his right coat pocket, but was tackled by an FBI agent. The agent found a loaded semi-automatic pistol in defendant’s right front coat pocket. Defendant stipulated to being a felon in possession of a firearm, but was convicted by a jury of assaulting a federal officer. Defendant argued that he was entitled to an acceptance of responsibility reduction because he stipulated to the felon-in-possession count. The Sixth Circuit held that a defendant must accept responsibility for all counts before he is entitled to an acceptance of responsibility reduction. Section 1B1.1 directs courts to group convictions prior to applying the acceptance reduction. Defendant never admitted reaching for his gun, the behavior constituting the assault conviction. Defendant’s admission to being a felon in possession of a handgun did not negate his continued denial of guilt for one of the offenses of conviction. U.S. v. Chambers, 195 F.3d 274 (6th Cir. 1999).
6th Circuit says sentence cannot exceed shortest statutory maximum in multi-object conspiracy. (150) Defendant was convicted by a general verdict of one count of conspiracy to distribute both cocaine base (crack) and marijuana. His 295-month sentence was calculated under the guidelines and the statutory maximum sentence of 40 years for conspiring to distribute crack. The statutory maximum for conspiring to distribute marijuana is five years. The Sixth Circuit found that in light of the 35-year difference in statutory maximum sentences, the district court committed plain error in using the statutory maximum sentence for crack rather than marijuana. In Edwards v. United States, 523 U.S. 511 (1998), the Supreme Court held that after a general conspiracy verdict to distribute both cocaine and crack, the judge is authorized to determine for sentencing purposes whether crack and cocaine were involved in the conspiracy and the amounts involved. However, the Court noted that “petitioners’ statutory and constitutional claims would make a difference if … the sentences imposed exceeded the maximum … for a cocaine-only conspiracy.” The implication is that the shorter maximum sentence should be used if the verdict is general, rather than specific, and the one drug allows for a sentence above the maximum for the other charged drug. U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999).
6th Circuit, en banc, says guidelines are mandatory. (150) In U.S. v. Davern, 937 F.2d 1041 (6th Cir. 1991), a 6th Circuit panel held courts should take a “flexible approach” to the guidelines by considering the facts in light of qualitative standards set forth in 18 U.S.C. section 3553(a). The 6th Circuit granted rehearing en banc, and rejected this flexible approach, finding that under 18 U.S.C. section 3553(b), the guidelines are a sentencing imperative. A district court must first determine a guideline sentence, and then consider whether there is an aggravating or mitigating circumstance not taken into account in setting the guideline sentence. Until the judge has determined a sentence under the guidelines, it is impossible to determine whether the mitigating or aggravating circumstances have in fact been taken into account in the guidelines. Judge Nelson, joined by Judges Guy, Suhrheinrich and Batchelder, concurred. Chief Judge Merrit, joined by Judges Martin and Jones, dissented. U.S. v. Davern, 970 F.2d 1490 (6th Cir. 1992) (en banc).
6th Circuit remands for resentencing in light of en banc decision in Davern. (150) The district court, following a two track sentencing procedure, sentenced defendant to 24 months in the event the 6th Circuit decision in U.S. v. Davern, 937 F.2d 1041 (6th Cir. 1991) (vacated on granting of rehearing en banc, 970 F.2d 1490 (6th Cir. 1992), was upheld upon rehearing en banc, and a guideline sentence of 63 months if Davern was rejecting by the en banc court. Since the validity of the lesser sentence imposed by the district court depended upon the en banc decision, the 6th Circuit remanded to the district court for reconsideration of the sentence in light of that en banc decision. U.S. v. Cummins, 969 F.2d 223 (6th Cir. 1992).
7th Circuit reverses district court's finding that threats were akin to attempted murder. (150). Defendant was convicted of several obstruction counts under 18 U.S.C. § 1512 based on threats he made to family members to prevent them from testifying against him. Appendix A does not list § 2J1.2 as a guideline applicable to § 1512 convictions, so the court sentenced defendant under § 2A2.1, the attempted murder guideline. On defendant's first appeal, the Seventh Circuit remanded, finding that the absence of § 2J1.2 from the statutory index was likely a scrivener's error. Defendant's guideline range under § 2A2.1 was 210-262 months; his guideline range under § 2J1.2 would have been 92-115 months. Nevertheless, at resentencing, the court reimposed the same 210-month sentence. The court repeatedly expressed its belief that defendant was "like the attempted murderer" and should be sentenced as such. The Seventh Circuit reversed, finding insufficient evidence that defendant would have attempted murder. Defendant's family members all testified that they did not feel threatened by defendant's statements. The victim believed that defendant was merely "blowing off steam" in issuing threats. U.S. v. England, 555 F.3d 616 (7th Cir. 2008).
7th Circuit remands because court failed to precisely calculate defendant’s total offense level. (150) Both the PSR and the government recommended a total offense level of 29 for each defendant. With a criminal history level of I, the sentencing range was 87-108 months. Defendants, however, filed numerous objections to the PSR challenging a number of enhancements, and arguing that the proper total offense level was 19 or 21, rather than 29. The district court did not definitely resolve the defendants’ objections to the PSR, and therefore did not calculate the total offense level and corresponding sentencing range. Instead, the court made only an estimate of the total offense level, which he considered to be “around” level 26 or 27. The Seventh Circuit remanded, finding the sentencing record lacked sufficient clarity to determine how or if the court made final rulings on the defendants’ objections to the PSR, much less the court’s methodology and final determination of the total offense level under the guidelines. Without this, the appellate court could not determine whether the sentence falls within the guidelines range (and therefore is entitled to a presumption of reasonableness) or whether it falls outside of the recommended range (and therefore requires sufficient additional reasoning from the district court). U.S. v. Bokhari, 430 F.3d 861 (7th Cir. 2005).
7th Circuit says sentence for money laundering must be based on money laundering guideline. (150) Defendant argued that his money laundering activity was simply a part of his scheme to harbor illegal aliens and therefore was an “atypical” case to which the court should not have applied the money laundering guideline. The Seventh Circuit rejected the argument noting that the introduction to Appendix A of the Sentencing Guidelines had been amended effective November 1, 2000, to delete the language authorizing use of a different guideline in “atypical” cases and instead requiring courts to “apply the offense guideline referenced in the Statutory Index for the statute of conviction.” Applying this new amendment did not violate the Ex Post Facto Clause because U.S. v. Buckowich, 243 F.3d 1081 (7th Cir. 2001) had held that this amendment did not alter the state of the law in the Seventh Circuit. The court was also unpersuaded that a proposed November 1, 2001 amendment which the Commission explained “would tie offense levels for money laundering more closely to the underlying criminal conduct,” was “simply a proposal,” and the court declined to adopt it as the law of the Seventh Circuit. Finally, the panel rejected defendant’s argument that his conduct was “atypical” money laundering, noting that defendant’s scheme involved more than $350,000 in funds derived solely from hiring illegal workers. U.S. v. Kosmel, 272 F.3d 501 (7th Cir. 2001).
7th Circuit judge says that defendants are entitled to advance notice of court’s intent to apply enhancement. (150) Defendant, a money market clerk for a bank, committed bank fraud. Although the PSR did not discuss an abuse of trust enhancement, the district judge, sua sponte, applied the enhancement. The court denied defense counsel’s request for an adjournment to research the issue. The 7th Circuit, in an opinion supported only by its author, Judge Coffey, held that Rule 32 and U.S.S.G § 6A1.3 require reasonable advance notice of the ground on which the district court is contemplating an enhancement, as well as a meaningful opportunity to challenge the issue. Simply being aware of facts that might warrant an enhancement is not sufficient to satisfy Rule 32’s notice requirement. Judge Posner found no need to resolve the issue and create an inter-circuit conflict, since it was “virtually certain” the enhancement was erroneous. Judge Kanne dissented. U.S. v. Jackson, 32 F.3d 1101 (7th Cir. 1994).
7th Circuit applies entire guidelines manual in effect at time of offense. (150) Under the version of 2F1.1 in effect at the time of sentencing, a fraud of defendant’s magnitude carried a higher offense level than under the version in effect at the time of the crime. However, the version in effect at the time of the crime specifically listed as a basis for upward departure the confluence of multiple victims and more than minimal planning, a basis not mentioned in later versions of the guidelines. The 7th Circuit upheld the district court’s use of the later guideline manual in its entirety, rejecting defendant’s argument that he should benefit from the more favorable aspects of each guideline manual. This result is consistent with the current “one book” rule in §1B1.11. U.S. v. Boula, 997 F.2d 263 (7th Cir. 1993).
7th Circuit suggests court should not pronounce sentence on one count until it has disposed of all counts. (150) Defendant was charged with five related money laundering counts. He was acquitted of counts one and two, and found guilty of count five. The jury was unable to reach a verdict on counts three and four, and the district judge ordered a mistrial on those counts. Defendant was then sentenced to 46 months prison on count five, and the sentence was stayed pending appeal. In holding it lacked jurisdiction over the appeal because of the pending counts, the 7th Circuit suggested that in future cases, the district judge should not pronounce any sentence until it has disposed of all counts. The grouping rules set forth in guideline section 3D1.1 create special problems when a conviction on one count of an indictment occurred at an earlier time than conviction on other counts. U.S. v. Kaufmann, 951 F.2d 793 (7th Cir. 1992).
8th Circuit holds that additional robberies not charged in indictment were part of charged conspiracy. (150) Defendant was charged with one count of conspiracy to commit bank robbery. Although the indictment only listed two bank robberies as overt acts, the jury specifically found that defendant had participated in a conspiracy involving five bank robberies. Under U.S.S.G. § 1B1.2(d), the district court then treated each of the five bank robberies as separate counts of conspiracy. Defendant argued that this was improper because the indictment only alleged his participation in two bank robberies. The Eighth Circuit found no error, since the five robberies fell within the temporal and substantive scope of the charged conspiracy. In a charge of conspiracy, the government is not limited to proof of the overt acts charged in the indictment, and a defendant may be held responsible for any of the acts of the conspiracy. U.S. v. Coleman, 349 F.3d 1077 (8th Cir. 2003).
8th Circuit says ambiguity in verdict irrelevant since sentence the same for both charges. (150) Defendant contended that it was unclear whether the jury convicted him of conspiracy to manufacture or conspiracy to distribute, or both, and therefore, he should have been sentenced in the lowest range that the verdict’s permissible interpretation would allow. The Eighth Circuit found that any ambiguity in the verdict was irrelevant, because defendant’s sentence would have been the same for both conspiracies. Defendant’s sentence would not have been lower if he had been sentenced only for conspiracy to distribute. A sentence for conspiracy to distribute or conspiracy to manufacture is determined by the amount of the drugs involved in the conspiracy that were reasonably foreseeable to the defendant. In the present case, the sentence was based on testimony from a witness who delivered drugs from the manufacturers to the distributors. The entire amount in these deliveries was already out of the hands of the manufacturers and had become part of the conspiracy to distribute. As a member of the conspiracy to distribute, it was reasonably foreseeable to defendant that there would be other distributors like himself, and that this amount of drugs would be involved. U.S. v. Mosby, 177 F.3d 1067 (8th Cir. 1999).
8th Circuit rejects “stacking” of acceptance of responsibility reductions for multiple counts. (150) Defendant was convicted of six drug-related counts. He argued that a November, 1993 amendment to § 3E1.1 allowed him to “stack” adjustments for acceptance of responsibility, i.e. he should have received a 12-point reduction, two points for each of the six counts. The 8th Circuit rejected this claim. Section 1B1.1(d) and (e) specifically instructs the district court to apply the adjustments as appropriate for the defendant’s acceptance of responsibility, only after the offense level includes all grouped offenses. U.S. v. Warren, 16 F.3d 247 (8th Cir. 1994).
8th Circuit upholds mandatory nature of guidelines. (150) Defendant argued that instead of automatically applying the sentencing guidelines, as 18 U.S.C. section 3553(b) requires, the sentencing court must first apply section 3553(a), which counsels the sentencing court to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in this section. Thus, defendant contended that the district court was not bound by the guidelines, but instead should have treated them as one factor to consider in determining the appropriate sentence. The 8th Circuit upheld the mandatory nature of the guidelines, noting that in this line of argument was rejected in earlier Circuit cases. U.S. v. Johnston, 973 F.2d 611 (8th Cir. 1992).
8th Circuit affirms increase in offense level where defendant conspired to rob two banks. (150) The 8th Circuit held that defendant’s offense level was properly increased to reflect the fact that the conspiracy of which he was a member conspired to rob two banks, not just one. Although defendant was only convicted of one count of conspiracy, guideline section 1B1.2(d) states that a conviction on a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit. U.S. v. Johnson, 962 F.2d 1308 (8th Cir. 1992).
9th Circuit reverses where court miscalculated guidelines range. (150) At defendant’s sentencing hearing, the district court stated that defendant’s offense level was 38, his criminal history category was I, and the resulting guidelines range was 292-365 months. According to the presentence report, however, defendant’s offense level was 40; also, an offense level of 38 at CHC I yielded a guidelines range of 235-293 months. The Ninth Circuit rejected the government’s argument that the district court’s description of the offense level was a simple misstatement and held that “the failure accurately to state the guidelines range at the outset derailed the sentencing proceeding before it even began.” With other errors identified by the court of appeals, this error required a remand. U.S. v. Doe, 705 F.3d 1134 (9th Cir. 2013).
9th Circuit chooses tax guidelines, rather than fraud guidelines, for false claims conviction. (150) Defendant was convicted of presenting false claims in violation of 18 U.S.C. § 287 after he filed 1,500 false tax returns seeking refunds. The Statutory Index in Appendix A to the Guidelines Manual recommends using the fraud guideline for a violation of 18 U.S.C. § 287. However, the Ninth Circuit noted that the guidelines referenced in the Statutory Index are not mandatory. U.S. v. Fulbright, 105 F.3d 443, 453 (9th Cir. 1997). The Index “merely points the court in the right direction. Its suggestions are advisory: what ultimately controls is the ‘most applicable guideline.’” U.S. v. Cambra, 933 F.2d 752, 755 (9th Cir. 1991). Here, the offense conduct was a scheme to file fraudulent tax returns and thus “could be considered on par with” tax fraud. Therefore, the district court did not err in employing the tax guidelines rather than the fraud guidelines. U.S. v. Aragbaye, 234 F.3d 1101 (9th Cir. 2000).
9th Circuit holds that specific offense characteristics must be applied “in the order listed.” (150) Guideline § 1B1.1(b) requires the sentencing court to “[d]etermine the base offense level and apply any appropriate specific offense characteristics . . . contained in the particular guideline in Chapter Two in the order listed.” In the present case, the district court applied the specific offense characteristics for alien smuggling out of order. That is, the court first increased the offense level to 18 for substantial risk of injury under § 2L1.1(b)(5) and then deducted three levels because the offense was not for profit under § 2L1.1(b)(1). If the calculation had been done “in the order listed,” the reduction for “not for profit” would have been eliminated by the increase to level 18 for “substantial risk of injury.” On appeal, the Ninth Circuit held that the district court should have applied the offense characteristics “in the order listed” and therefore reversed and remanded the case for resentencing. The court left open the possibility of a departure on remand. U.S. v. Partlow, 159 F.3d 1218 (9th Cir. 1998).
9th Circuit subtracts for role before applying acceptance of responsibility guideline. (150) In the plea agreement, the government agreed that the base offense level was 16 and that two levels should be deducted for role in the offense and three levels for acceptance of responsibility. At sentencing, however, the district court deducted the two levels for minor role under guideline § 3B1.2, making the offense level 14, before considering acceptance of responsibility. Section 3E1.1(b) permits the third level deduction for acceptance of responsibility only if the offense level before applying § 3E1.1 is “level 16 or greater.” Accordingly, the district court deducted only two levels for acceptance of responsibility. On appeal, the Ninth Circuit affirmed. The court noted that the plea agreement explicitly provided that the court was not bound by what the government said in the plea agreement. The district court “properly followed the directions of the sentencing guidelines, deducting the role points before turning to the provision for acceptance of responsibility. U.S. v. Flinn, 18 F.3d 826, 831 (10th Cir. 1994).” [Ed. note: section 1B1.1 expressly provides that the role adjustment is to be applied before the adjustment for acceptance of responsibility.] U.S. v. Sanchez-Anaya, 143 F.3d 480 (9th Cir. 1998).
9th Circuit rejects using fraud guideline in immigration false document case. (150) Defendant was convicted of conspiring to file false applications with the Immigration and Naturalization Service in violation of 18 U.S.C. § 371, and filing false statements with the INS in violation of 18 U.S.C. § 1001. The district court sentenced him under the fraud guideline, 2F1.1, but on appeal, the Ninth Circuit reversed, holding that the court should have applied the immigration false document guideline, 2L2.1. The court acknowledged that Appendix A to the guideline manual indicates that 2F1.1 applies to convictions under 18 U.S.C. § 1001. But in U.S. v. Cambra, 933 F.2d 752, 755 (9th Cir. 1991), the court recognized that Appendix A is only an “interpretive aid” and that courts should apply the “most applicable guideline.” Here, the immigration false document guideline was more appropriate than the fraud guideline. The fact that the court might have to depart to accommodate the degree of defendant’s conspiracy “would not by itself demand application of the fraud guideline.” U.S. v. Velez, 113 F.3d 1035 (9th Cir. 1997).
9th Circuit says ruling on retroactive guideline amendment is a “criminal case” which must be appealed in ten days. (150) Under 18 U.S.C. § 3582(c)(2), the sentencing court may resentence a defendant if the Sentencing Commission lowers the guideline range and the amendment is made retroactive under guideline section 1B1.10. The Ninth Circuit held that since the purpose of a § 3582 motion is resentencing, it is “a step in the criminal case.” Thus, the defendant’s notice of appeal from the order denying his motion should have been filed within 10 days pursuant to Fed. R. App. P. 4(b). Since defendant filed his notice of appeal more than 10 days after entry of the district court’s order, but within 40 days, the case was remanded for the limited purpose of determining whether excusable neglect existed for the late filing of the notice of appeal. U.S. v. Ono, 72 F.3d 101 (9th Cir. 1995).
9th Circuit rejects retroactive application of amendment allowing career offenders credit for accepting responsibility. (150) Under 18 U.S.C. section 3553(a)(4) and (5), the guidelines to be applied by the sentencing court are those that “are in effect on the date the defendant is sentenced.” After defendant was sentenced, section 4B1.1 was amended to permit career offenders to be given a two point reduction for acceptance of responsibility. The defendant here argued that this amendment should be held to constitute a clarification of the Sentencing Commission’s previous intent. Relying on U.S. v. Mooneyham, 938 F.2d 139, 140 (9th Cir.), the 9th Circuit rejected the argument, noting that it had been “squarely rejected” in Mooneyham. U.S. v. Robinson, 958 F.2d 268 (9th Cir. 1992), abrogation on other grounds recognized by U.S. v. Newman, 203 F.3d 700 (9th Cir. 2000).
10th Circuit upholds separate grouping of counts relating to different assaults. (150) Defendants were convicted of two counts stemming from their involvement in two racially motivated assaults. Because the jury returned a general verdict, the record did not reveal what the jury found regarding the scope of the conspiracy charged in Count I. The court treated the conspiracy count as if it were two separate counts, each charging conspiracy to commit one of the assaults. The court grouped the conspiracy to commit the first assault in Count I with the substantive assault in Count II, because both offenses involved the same act and the same victim. § 3D1.2(a). The court considered the conspiracy to commit the second assault as a separate count. The Tenth Circuit held that the district court correctly applied §§ 1B1.2(d) and 3D1.2. Section 1B1.2(d) clearly provides that a count charging a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense that the defendant conspired to commit. In addition, § 3D1.2 provides that a court should group all counts involving substantially the same harms, such as when the counts involve the same victim and the same act. U.S. v. Egbert, 562 F.3d 1092 (10th Cir. 2009).
10th Circuit upholds judge’s power to decide that cocaine in conspiracy was crack. (150) Defendant was convicted of conspiracy to distribute cocaine powder and cocaine base. He argued that because the jury returned a general verdict that did not specify the object of the conspiracy, he should be resentenced under the presumption that the jury found him guilty of a conspiracy involving only cocaine powder. The Tenth Circuit held that under Edwards v. U.S., 118 S.Ct. 1475 (1998), the judge was authorized to determine for sentencing purposes whether crack as well as cocaine was involved in the conspiracy. Regardless of the jury’s actual or assumed beliefs about the conspiracy, the guidelines require the judge to determine whether the “controlled substances” at issue¾and how much of those substances¾consisted of cocaine, crack or both. U.S. v. Bell, 154 F.3d 1205 (10th Cir. 1998).
10th Circuit rejects guideline procedure for conspiracies with multiple objects. (150) Section 1B1.2(d) provides that a conspiracy to commit more than one offense shall be treated as if the defendant had been convicted on a separate count of conspiracy for each offense. Under note 5, this section is only applied if the court, sitting as the trier of fact, would have convicted the defendant of conspiring to commit the object offense beyond a reasonable doubt. The Tenth Circuit said this procedure violates the Fifth and Sixth Amendment by taking this issue away from the jury and placing it in the hands of the judge. Nevertheless, the court found the record in this case was sufficiently clear that defendant intended to plead guilty to conspiracy to distribute cocaine base. In his plea agreement, defendant acknowledged that the government was aware of 5-15 kilograms of cocaine base attributable to him. During his testimony at the trial of his co-conspirators and during the plea hearing he repeatedly admitted that he had conspired to distribute crack cocaine. Accordingly, his sentence was affirmed. U.S. v. Bush, 70 F.3d 557 (10th Cir. 1995).
10th Circuit remands for resentencing where district court used wrong sentencing range. (150) The presentence report fixed defendant’s offense level at 24 and criminal history category at II, and then incorrectly stated that this resulted in a guideline range of 63 to 78 months. The actual range was 57 to 71 months. In sentencing defendant to 70 months, the district judge clearly indicated that he understood that defendant had a guideline range of 63 to 78 months. The 10th Circuit remanded for resentencing under the correct guideline range. U.S. v. Gallegos, 922 F.2d 630 (10th Cir. 1991).
10th Circuit vacates where district court failed to determine offense level or criminal history. (150) Defendant was sentenced to 30 years under the Armed Career Criminal Act. The case was remanded to consider guideline § 5G1.1, which requires the sentence to be within the guideline range unless the range is less than the mandatory minimum or statutory maximum. At resentencing, the court found that the defendant should receive the mandatory minimum sentence of 15 years. The court then departed upward and sentenced defendant to 30 years. The 10th Circuit vacated the sentence again. The district court failed to follow the guidelines in determining the guideline range. It improperly equated the mandatory minimum sentence with the “guideline sentence.” The 10th Circuit also found that it could not review the upward departure, since the district court provided no information how it determined the offense level or criminal history. The sentence was vacated and remanded. U.S. v. Tisdale, 921 F.2d 1095 (10th Cir. 1990).
11th Circuit rejects sentence based on more serious drug in multi-object conspiracy. (150) Defendants were convicted of conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846. The jury returned a general verdict, not a special verdict. At sentencing, the district court acknowledged that under U.S. v. Dale, 178 F.3d 429 (6th Cir. 1999) and U.S. v. Rhynes, 196 F.3d 207 (4th Cir. 1999), vacated in part en banc, 218 F.3d 310 (4th Cir. 2000), where a count alleges a conspiracy involving multiple controlled substances, in the absence of a special verdict, a court cannot sentence beyond the maximum sentence for the least serious of the alleged controlled substances. The district court found Dale and Rhynes distinguishable because (1) the indictment charged a conspiracy to distribute both cocaine and marijuana, and (2) the written jury instructions said that the conspiracy involved cocaine, without mention of marijuana. Accordingly, the court imposed 240-month sentences on the conspiracy count. The Eleventh Circuit reversed, finding a Dale-Rhynes violation. The jury instructions were modest in describing the nature of the conspiracy. The conjunction “or” was used in the oral instructions, while the printed instructions ignored the marijuana as being part of the conspiracy. At no time was the jury advised, either in the court’s instructions or in the government’s argument to the jury, that in order to find a defendant guilty it must find that the defendant had agreed to participate with both cocaine and marijuana. U.S. v. Allen, 302 F.3d 1260 (11th Cir. 2002).
11th Circuit vacates where court failed to determine object of conspiracy beyond a reasonable doubt. (150) Under § 1B1.2(d) and Eleventh Circuit case law, where a count charges a conspiracy to commit more than one offense, the district court must find beyond a reasonable doubt that the defendant conspired to commit that particular offense in order to apply the corresponding offense level as found in the guidelines. See U.S. v. Ross, 131 F.3d 970 (11th Cir. 1997). Defendant argued that the district court erred in sentencing him on the basis of a multi-object conspiracy because it did not find beyond a reasonable doubt that he conspired to commit each object offense of the conspiracy. The Eleventh Circuit agreed and remanded for resentencing. Although the district court acted both as the trier of fact and imposed the sentence, the court’s decision to base defendant’s sentence on a multi-object conspiracy for mail fraud and money laundering did not necessarily imply that those objects were proved beyond a reasonable doubt. U.S. v. Vallejo, 297 F.3d 1154 (11th Cir. 2002).
11th Circuit says court erred in failing to determine beyond a reasonable doubt the object of conspiracy. (150) Count 17 charged defendants with two offenses as the objects of their money laundering conspiracy: (1) conducting financial transactions with the proceeds of the telemarketing scheme with the intent of promoting the scheme, in violation of 18 U.S.C. § 1956(a)(1)(A)(i); and (2) knowingly concealing the proceeds of the scheme, in violation of 18 U.S.C. § 1956(a)(1)(B)(i). The jury returned a general verdict of guilty. At sentencing, the court, without determining beyond a reasonable doubt which of the charged offenses was the basis of the jury’s verdict, calculated defendants’ sentences using the more severe offense level associated with the § 1956(a)(1)(A) (i) offense. The Eleventh Circuit ruled that the court’s failure to determine which money laundering offense formed the object of the conspiracy constituted error under both USSG § 1B1.2(d) and its decision in U.S. v. McKinley, 995 F.2d 1020 (11th Cir. 1993). Where defendants are convicted on a count charging a conspiracy to commit multiple offenses, and the jury’s verdict does not specify which of the offenses the defendants conspired to commit, Note 5 to 1B1.2(d) requires the sentencing judge to determine beyond a reasonable doubt which offense the defendant conspired to commit. U.S. v. Venske, 296 F.3d 1284 (11th Cir. 2002).
11th Circuit limits information judge may consider in sentencing within guideline range. (150) The district court sentenced defendant at the high end of the guideline range – six months – to penalize her for refusing to cooperate in the case against her husband. The Eleventh Circuit reversed, holding that penalizing a defendant for this reason “simply does not achieve any of the goals set forth in [18 U.S.C.] § 3553(a)(2), and consequently, exceeds the district court’s sentencing discretion.” The panel acknowledged that 18 U.S.C. § 3661 and guideline § 1B1.4 authorize a court to consider “without limitation any information concerning the background, character, and conduct of the defendant.” But the court held that this language is constrained by 18 U.S.C. § 3553(a)(2) which codifies four sentencing objectives courts must take into account in fashioning a sentence, and 28 U.S.C. §§ 991-998, which limit the discretion of the Sentencing Commission “and, necessarily, the discretion of sentencing judges.” The court said that these sections require any consideration of offense or defendant characteristics to bear some “relevance to the nature, extent, place of service, or other incidents (sic) of an appropriate sentence.” Here, the court said “[w]e cannot imagine how [defendant’s] cooperation with the government in the case against her husband could possibly bear on the length of her incarceration.” U.S. v. Burgos, 276 F.3d 1284 (11th Cir. 2001).
11th Circuit applies guidelines in the order listed in § 1B1.1. (150) Defendant argued that the district court erred in “prematurely” departing downward to reduce his offense level for felony murder from 43 to 37 and thereafter applying the grouping rules, which resulted in his offense level rising back to 41. He argued that the grouping rules should have been applied first, before the departure. The Eleventh Circuit disagreed relying on guideline § 1B1.1, which instructs the court to apply any special instructions in the Chapter 2 guidelines before applying the grouping rules in § 3D. Application Note 1 to the murder guideline, § 2A1.1, says a court may depart downward if “the defendant did not cause the death intentionally or knowingly.” Thus, it was proper for the court to depart downward pursuant to this instruction before applying the grouping rules in § 3D. U.S. v. Nguyen, 255 F.3d 1335 (11th Cir. 2001).
11th Circuit holds conspiracy to possess cocaine powder and crack is not a multi-object conspiracy. (150) Defendants were convicted of conspiracy to possess with intent to distribute cocaine powder and crack cocaine, in violation of 21 U.S.C. § 841(a). The court held defendants accountable for various amounts of both cocaine powder and crack cocaine. Defendants argued for the first time on appeal that under § 1B1.2(d), the district court was required to find beyond a reasonable doubt whether the conspiracy involved powder, crack, or both. The Eleventh Circuit held that § 1B1.2(d) was not applicable because the charged conspiracy was not a multi-object one. Defendants were charged with conspiracy to violate 21 U.S.C. § 841(a) by possessing with intent to distribute a controlled substance. Thus, the conspiracy had only one object. The conspiracy was to commit one crime in two ways. The court was merely required to find by a preponderance of the evidence that defendants were involved in a conspiracy to possess both powder and crack. U.S. v. Riley, 142 F.3d 1254 (11th Cir. 1998).
11th Circuit finds insufficient evidence to use murder as object of multi-object conspiracy. (150) A jury convicted five members of defendant’s family of various charges related to the murder-for-hire of the night watchman at their family business warehouse, the burning of that warehouse and the ensuing fraud on the warehouse’s insurer. Defendant was convicted of a conspiracy, the objects of which were murder-for-hire, arson, and mail fraud. Under note 5 to § 1B1.2(d), where the verdict does not establish which offense was the object of a multi-object conspiracy, the court can only apply the guideline for a particular object offense if it finds beyond a reasonable doubt that the defendant conspired to commit that object offense. The Eleventh Circuit found insufficient evidence that, for § 1B1.2(d) purposes, defendant conspired to commit murder-for-hire. Defendant’s acquittal on the substantive murder count did not foreclose conviction on the related conspiracy count. However, the government proved nothing more than defendant was present during the planning of the murder. The witness who overheard the conspirators’ discussion did not testify that defendant participated in the discussion. Defendant’s father, one of the conspirators, had tyrannical control of his family members, especially defendant, who was only 18 at the time of the murder. It was not unlikely that the father would permit his son to be present during the conspiratorial discussions even though his son was not a member of the conspiracy. U.S. v. Hernandez, 141 F.3d 1042 (11th Cir. 1998).
11th Circuit upholds refusal to impose sentence for more serious conspiracy. (150) Defendant was charged with various substantive counts relating to the illegal export of bomb-making materials, and conspiracy to (1) make false statements, (2) violate the Arms Export Control Act (AECA), and (3) violate the Export Administration Act (EAA). The jury acquitted defendant on the substantive EAA charge and convicted him by general verdict on the conspiracy count. The district court sentenced defendant as if only conspiracy to make false statements and conspiracy to violate the AECA had been proved, and the Eleventh Circuit affirmed. Section 1B1.2 requires a court to apply the guidelines for those objects of the conspiracy that were proved beyond a reasonable doubt. The court can make this finding “either implicitly or explicitly.” The parties specifically brought § 1B1.2 to the court’s attention at sentencing. After careful consideration, the court refused to impose the guideline sentence for conspiracy to violate the EAA. Under these circumstances, there was an implicit finding by the district court supporting its sentencing decision. U.S. v. Johnson, 139 F.3d 1359 (11th Cir. 1998).
11th Circuit rejects challenge to guideline permitting court to find objects of conspiracy. (150) Defendants were convicted of wire fraud, interstate transportation of money taken by fraud, and conspiracy. The conspiracy charged contained multiple objects, including money laundering. Defendants argued that the district court erred in using the money laundering guideline for the conspiracy count because the jury acquitted them of a substantive money laundering charge. Section 1B1.2(d) provides that a conviction on a conspiracy count charging more than one object shall be treated as if the defendant had been convicted of each offense the defendant conspired to commit. Note 5 adds that this applies if the court, sitting as a trier of fact, would have convicted the defendant of conspiring to commit the object offense. The Eleventh Circuit, agreeing with the Third Circuit’s opinion in U.S. v. Conley, 92 F.3d 157 (3d Cir. 1996), rejected defendant’s 5th and 6th Amendment challenges to § 1B1.2(d) and note 5. However, the district court should not have applied the money laundering guideline here without an independent determination that defendants conspired to commit money laundering. The case was remanded for appropriate factual findings. U.S. v. Ross, 131 F.3d 970 (11th Cir. 1997).
11th Circuit permits use of guideline different from Statutory Index, but not here. (150) Defendant, a police officer, was caught in an FBI sting stealing money from an undercover agent posing as the girlfriend of a wanted fugitive. Defendant was convicted under 18 U.S.C. § 641 of stealing FBI funds. The trial judge determined that the theft offense was accompanied by civil rights violations, including an “abusive” search of the agent’s hotel room without a warrant or consent. The Eleventh Circuit held that the court erred in sentencing defendant under §2H1.1, the civil rights guideline, rather than § 2B1.1, the theft guideline. The Statutory Index provides that § 2B1.1 is the guideline ordinarily applicable to convictions under § 641. Section 1B1.2(a) cannot be the basis for applying § 2H1.1 because there was no plea agreement and no stipulation that specifically established a more serious offense. Appendix A does provide that in an “atypical case” where the designated guideline section is inappropriate, a court can use the guideline section most applicable “to the nature of the offense conduct charged in the count of conviction.” Thus, this clause permits a court to consider the implications of the facts recited in the information but additional to the specific crime charged. It was inapplicable here because the indictment did not charge a civil rights violation. U.S. v. Jackson, 117 F.3d 533 (11th Cir. 1997).
11th Circuit refuses to cap offense level at 43 before applying acceptance of responsibility reductions. (150) Defendants all had combined adjusted offense levels of 46, three levels above the top level in the Sentencing Table. The district court subtracted three levels for acceptance of responsibility to reach a total offense level of 43. They argued that their offense levels should have been capped at 43 before applying the § 3E1.1 reduction, but the Eleventh Circuit rejected the argument. Section § 1B1.1(a)-(i) lists the steps to be taken in calculating a defendant’s sentence, and step (g) indicates that all upward and downward adjustments are to be made before the court reduces any final offense level that is over level 43. U.S. v. Houser, 70 F.3d 87 (11th Cir. 1995).
11th Circuit prohibits piecemeal application of guidelines. (150) The district court sentenced defendant under the 1987 guidelines, in effect at the time of his offense, because they were less punitive, as a whole, than the 1992 guidelines in effect at sentencing. Defendant argued that he was eligible for the additional one level reduction for acceptance of responsibility under § 3E1.1 of the 1992 guidelines in effect at his sentencing. The 11th Circuit disagreed, holding that the guidelines must be applied as a cohesive whole rather than in a piecemeal fashion. A defendant cannot mix and match amended provisions to achieve the most favorable sentence possible. U.S. v. Lance, 23 F.3d 343 (11th Cir. 1994).
Commission requires courts to consider departures before granting a variance. (150) The Commission noted that most circuits already agree on a three-step approach, in which the court first computes the guideline range and then considers whether to depart from the guidelines before determining whether the applicable factors in 18 U.S.C. § 3553(a) justify a Booker "variance" from the guidelines. Nevertheless, to resolve a circuit conflict on this issue, the Commission amended guideline § 1B1.1 (application instructions) specifically to adopt the three-step approach, and to make it clear that departures are not "obsolete" as the Seventh Circuit has stated. Amendment 741, effective November 1, 2010.
Commission implements statute allowing for 70-year-old prisoners who have served 30 years. (150) The Commission added a new policy statement at § 1B1.13, permitting a court, on motion of the Director of the Bureau of Prisons pursuant to 18 U.S.C. § 3582(c)(1)(A), to reduce the term of imprisonment of any prisoner who is at least 70 years old who has served at least 30 years in prison. Amendment 683, effective November 1, 2006.
Article advocates “structural” interpretation, assesses “crime of violence” requirement. (150) Mary E. McDowell urges courts to view the guidelines in the same way they would view a complex statute, interpreting parts in a way that accords with the “internal structure of the text” and that makes the scheme as a whole appear “rational.” Failure to follow this approach, she argues, had led to a diversity of viewpoints as to whether the crime of being a felon illegally in possession of a firearm constitutes a “crime of violence” within the meaning of the Career Offender guideline, section 4B1.1. Though the Commission sought to clarify this point by adding Commentary in November 1991, courts have not yet achieved uniformity. McDowell argues that reading 4B1.1 in conjunction with 2K2.1 and 4B1.4 would lead courts to conclude that being a felon in possession constitutes a crime of violence only when the indictment charges facts indicating that the crime was in fact violent. Mary E. McDowell, The Importance of Structural Analysis in Guideline Application, 5 Fed. Sent. Rptr. 112-14 (1992).